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6/16/2013

NSA admits listening to U.S. phone calls without warrants

A portion of the NSA's mammoth data center in Bluffdale, Utah, scheduled to open this fall.

(Credit: Getty Images)

National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls. That authorization appears to extend to e-mail and text messages too.

by Declan McCullagh

The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.

Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed "simply based on an analyst deciding that."

If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee.

Not only does this disclosure shed more light on how the NSA's formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler's disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.

The disclosure appears to confirm some of the allegations made by Edward Snowden, a former NSA infrastructure analyst who leaked classified documents to the Guardian. Snowden said in a video interview that, while not all NSA analysts had this ability, he could from Hawaii "wiretap anyone from you or your accountant to a federal judge to even the president."

There are serious "constitutional problems" with this approach, said Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who has litigated warrantless wiretapping cases. "It epitomizes the problem of secret laws."

The NSA yesterday declined to comment to CNET. A representative said Nadler was not immediately available. (This is unrelated to last week's disclosure that the NSA is currently collecting records of the metadata of all domestic Verizon calls, but not the actual contents of the conversations.)

"William Binney, a former NSA technical director who helped to modernize the agency's worldwide eavesdropping network, told the Daily Caller this week that the NSA records the phone calls of 500,000 to 1 million people who are on its so-called target list, and perhaps even more. "They look through these phone numbers and they target those and that's what they record," Binney said. "